MUTHU BHATTAR Vs. D. CHOKKU BHATTAR

JUDGEMENT

(1.) THE unsuccessful plaintiff in O.S. No. 151 of 1965 on the file of the learned Principal Subordinate Judge of Madurai is the appellant. The dispute is about the right which one of the widows of a joint family acquired in relation to one of the properties of the family. Chinnasami Battar had five sons. Three amongst them died issueless. The other two sons were Subbu Battar and Chokku Battar. Subbu Battar died leaving behind him his son Chinnaswami Battar, who, in turn, died on December 31, 1937, leaving behind him his widow Ammani Ammal. The other son Chokku Battar died in 1935 leaving behind him subbammal as his widow. Ammani Ammal died on February 22, 1945, after having taken the plaintiff in adoption. Subbammal, however, lived till September 3, 1965. Subbammal was therefore admittedly a pre -1937 widow in the sense that she became widow prior to the passing of the Hindu Women's Rights to Property Act of 1937. In 1940, she filed the suit O.S. No. 202 of 1940 on the file of the District Munsif of Madurai, seeking for her accredited maintenance rights. It is common ground that in the pleadings in that suit, Subbammal stated that she was living in one of the family houses and in consequence thereof, she claimed a sum of Rs. 75/ - on account of her maintenance. She however made it clear that she was in occupation of the above immovable property belonging to the joint family and that she was claiming in that suit the additional money claim which was in addition to her right to reside in the family house which was also under her occupation under an arrangement with the other members of the joint family and that right of occupation coupled with the decree sought for in money for her living and existence would be in full quit and satisfaction of her claim to maintenance as against the other members of the family. The learned District Munsif referred to this fact and observed that Subbammal was not claiming any independent relief in respect of her right to residence and that the money sought for other purposes of her living may be computed independent of such right of residence which she was already enjoying as above. The learned District Munsif also said that, in addition to the residence in regard to which no relief was claimed in the plaint and as to which no provision was made in the judgment, the plaintiff Subbammal would be entitled to a sum of Rupee 25/ - per month on account of her maintenance after the date of the judgment. This judgment and decree of the Court below which went up in appeal was confirmed excepting to the extent that the quantum of maintenance granted was increased by Rs. 5/ -. After the said judgment was so rendered by a competent Court, Subbammal continued to reside in the property which is the subject matter of this suit and, as already stated, lived till September 3, 1965, which is posterior in point of time to the date of the induction of the Hindu Succession Act, 1956. Consequently, upon the provisions, contained in the Hindu Succession Act of 1956 and in the view that her limited interest which was a qualified interest in the property in which she was residing and which she acquired in lieu of maintenance enlarged itself into an absolute estate, Subbammal executed a registered will (Ex. B -57) bequeathing the property in favour of defendants 1 and 2 who are her near relations. It is also not in dispute that defendants 1 and 2 continued in possession of the suit property by virtue of the testament after the death of Subbammal. Whilst matters stood thus, the plaintiff, soon after the death of Subbammal, filed the present action for a declaration of his title to the suit property as the immediate reversioner of Subbammal and sought for a permanent injunction restraining the defendants from interfering with his alleged possession of the suit property or, in the alternative, for possession with mesne profits.

(2.) THE defendants in their written statement, after having referred to the relevant facts which led to Subbammal executing the testament in question maintained that at no time, the plaintiff was in possession of the suit property and, therefore, was not entitled to the preventive injunction against them. On the other prayer of the plaintiff that he should be declared as the owner of the suit property and entitled to possession thereof, the defence was that the plaintiff did have no manner of right, title or interest in it and that by virtue of Ex. B -57 they were entitled to the suit property in their own right and in consequence, they were entitled to be in possession of the same without being disturbed by the alleged claim or right projected by the plaintiff.

(3.) ON issues 6 and 8, the learned Subordinate Judge held that, as the suit has been property valued in the course of trial and as proper court -fee has been paid, the issues need not be answered one way or the other. On Issue No. 2, he held that the plaintiff was never in possession of the suit house and, therefore not entitled to the relief of injunctions as prayed for. On issues Nos. 1 and 3 which are the material issues which arose for consideration before him, he held that by reason of Section 14 (1) of the Hindu Succession Act and in the facts and circumstances of this case, Subbammal became a fresh stock of descent under the Act and she having died not intestate, had absolute title to the property and that she had in consequence the incidental right and capacity to deal with it in any manner she desired. The learned Subordinate Judge considered the import of the judgment of the learned District Munsif referred to earlier and found that the right acquired by the plaintiff in that suit, viz., Subbammal in or about 1940 as was seen from the recitals in the pleadings in that suit and as was obvious from the facts disclosed during its trial was a right which she acquired to the suit property in lieu of her maintenance, that she was in possession of the same on the date when the Hindu Succession Act, 1956, came into force and that the charge created by the decree as regards the secured payment of the money decree passed therein would not in any way alter the situation. On Issues Nos. 4 and 5, he held that Ex. B -57 was executed by Subbammal whilst she had the necessary testamentary capacity to do so and that the will has been proved in solemn form in accordance with the law and that, therefore, the defendants 1 and 2 could base their claim on Ex. B -57. He was also of the view that there were no suspicious circumstances surrounding the execution of the will and that Subbammal had the JUS DISPONENDI not only to write the will, but also to dispose of the property which is the subject -matter of the testament as she purported to do. Ultimately, he upheld the title of defendants 1 and 2 to the suit property and therefore dismissed the suit of the plaintiff. It is as against this, the present appeal has been filed.